Citation Nr: 1340190
Decision Date: 12/05/13 Archive Date: 12/20/13
DOCKET NO. 07-31 401 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent for lumbar strain and chronic low back pain with spondylosis.
2. Entitlement to an evaluation in excess of 10 percent for tinea cruris.
3. Entitlement to an evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD).
4. Entitlement to an evaluation in excess of 10 percent before December 13, 2011 and in excess of 20 percent since December 13, 2011 for traumatic arthritis, cervical spine.
REPRESENTATION
The Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Russell P. Veldenz, Counsel
INTRODUCTION
The Veteran had active service from May 1979 to August 1979 and from October 1989 to December 1997.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Albuquerque, New Mexico currently has jurisdiction of the file.
In July 2010, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. Pursuant to 38 C.F.R. § 20.707, the Veteran was advised in a letter dated in September 2013, of his right to a second Board hearing before another judge and to let VA know whether he wanted a second hearing within thirty days of the date of the letter. As the Veteran or his representative never responded, the right to a second hearing is deemed waived and the Chairman has reassigned the matter to the undersigned Veterans Law Judge. A transcript of the hearing before the prior Veterans Law judge is in the record.
In November 2011, the Board remanded the case to the RO for additional development.
During the pendency of the appeal, in a rating decision in February 2012, the RO increased the rating for his cervical spine disability from 10 percent to20 percent, effective December 13, 2011. The Veteran continued his appeal for a higher rating. AB v. Brown, 6 Vet. App. 35, 38 (1993).
In a rating decision dated in October 2013, the RO granted service connection for sleep apnea, awarding an evaluation of 50 percent, service connection for major depressive disorder, awarding an evaluation of 100 percent, and special monthly compensation based upon housebound criteria. As the Veteran has not initiated an appeal of any issue in the October 2013 rating decision, they have not been developed for appellate review by the Board. The same rating decision also denied the claim for TDIU. The Veteran does have the remainder of the one-year period from notification of the October 31, 2013 rating decision to file a notice of disagreement to initiate an appeal.
The appeal of the Veteran originally included claims for service connection for left peroneal nerve damage, and service connection for right peroneal nerve damage. In a rating decision in February 2012, the RO granted service connection for the peroneal nerve damage disabilities. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for left peroneal nerve damage and service connection for right peroneal nerve damage.
The Veteran claims service connection for migraine headaches secondary to being hit in the head with a rifle during service. The Board notes that service connection is already in effect for headaches. A March 1999 rating decision granted service connection for headaches. A non-compensable evaluation is currently in effect pursuant to Diagnostic Code 8100.
The December 2009 Statement of the Case informed the Veteran that he was already service-connected for headaches and advised him to inform the RO if he wished to seek an increase rating for his headache disability. The Board notes that the Veteran informed the RO in a July 2007 statement that he was seeking an increased (compensable) evaluation for his service-connected headaches. The RO has not adjudicated the Veteran's claim for an increased rating for headaches.
The issue of entitlement to an increased rating for headaches has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
FINDINGS OF FACT
In November 2013, received by VA from his service representative and prior to the promulgation of a decision, the Veteran in writing withdrew his appeal on the issues of an increased rating for the lumbar strain and chronic low back pain with spondylosis disability, an increased rating for the tinea cruris disability, an increased rating for the GERD disability, and an increased rating for the traumatic arthritis of the cervical spine.
CONCLUSION OF LAW
The criteria for withdrawal of the appeal for an increased rating for the lumbar strain and chronic low back pain with spondylosis disability, an increased rating for the tinea cruris disability, an increased rating for the GERD disability, and increased rating for the traumatic arthritis of the cervical spine have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In a May 2006 rating decision, the RO continued the 20 percent rating for the Veteran's lumbar strain disability, the 10 percent rating for the tinea cruris disability, the 10 percent rating for the GERD disability, and the 10 percent rating for the cervical spine disability.
In November 2011, the Board remanded these four issues to the RO for further development. As noted above, effective December 2011, the RO increased the rating for the cervical spine disability from 10 percent to 20 percent in a February 2012 rating decision. At all relevant times before his appeal was most recently certified to the Board, the Veteran argued he should have been awarded evaluations higher than the ratings determined by the RO. The RO certified the appeal to the Board in March 2012. In a signed writing received by VA in November 2013 from his service representative, the Veteran stated that he wished to withdraw the appeal in its entirety.
A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. Withdrawal of a substantive appeal may be made by the Veteran. 38 C.F.R. § 20.204.
As there is no longer an allegation of error of fact or of law as to the claims, the Board does not have appellate jurisdiction and the appeal as to the claims for an increased rating for the lumbar strain and chronic low back pain with spondylosis disability, an increased rating for the tinea cruris disability, an increased rating for the GERD disability, and an increased rating for the traumatic arthritis of the cervical spine is dismissed. 38 U.S.C.A. § 7105.
ORDER
The appeal for an increased rating for lumbar strain and chronic low back pain with spondylosis is dismissed.
The appeal for an increased rating for tinea cruris is dismissed.
The appeal for an increased rating for GERD is dismissed.
The appeal for an increased rating for traumatic arthritis of the cervical spine is dismissed.
____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs